Tamar Lerer


At the Hawai’i Girls Court, everyone is female. The presiding judge is female, the probation officers are female, the program coordinators are female and, of course, the clientele is female. The Court, a diversionary program for juvenile females in Hawai’i, is just one gender-responsive program in the juvenile justice system—interest in and availability of such programming is increasing. But even though gender-responsive programs are promoted and funded by federal and local governments and the private sector, legal scholars have yet to undertake any searching examination of the programs’ legal footing.

This Article makes two related claims. First, the Girls Court, which relies on a gender-based classification, is legal despite the heightened scrutiny usually accorded to gender-discriminatory programming. Second, though the Court is defensible as a special treatment for girls based on characteristics shared by many of their gender, this conception of the Court is unsatisfying. Instead, Girls Court should be thought of as an individualized program that seeks to fulfill the mandate of the juvenile justice system—the holistic rehabilitation and treatment of young offenders. Conceiving the Court in this way, however, obscures any reason not to make similarly individualized treatment available to boys, and suggests a duty to provide substantially equal gender-responsive programming to all juvenile offenders.

This paper proceeds in three parts. In Part I, I introduce the Girls Court, review the empirical justifications for the Court, and situate it within the larger alternatives-to-incarceration movement. Part II explores how the current legal regime, which tolerates some forms of sex discrimination but not others, applies to the Girls Court. In order to understand and evaluate the legality of Girls Court, I review the case law on gender discrimination; introduce a novel survey of statutes, regulations, and policies governing prison gender discrimination in all fifty states, the District of Columbia, and the federal government; and review the federal regulations that implement Title IX in schools. The final Part offers some answers to the legal questions highlighted in Part II and explores whether Girls Court is good public policy, identifying a few serious pitfalls but ultimately concluding that Girls Court is a step in the right direction.

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Criminal Law Commons



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